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Hilarious Novell/Computer Associates Tug-of-War Over Subpoena Ends with a Stip - Oh, and Novell Has Subpoenaed HP
Wednesday, April 18 2007 @ 12:54 AM EDT

It seems there has been a little bit of drama associated with the SCO v. Novell case, with Novell sending a subpoena to Computer Associates, who really, really didn't want to do the deposition or turn over any documents.

The dustup is funny to follow, beginning with CA objecting to the subpoena on the grounds that Novell issued the subpoena noticed for the offices of Morrison & Foerster in the *Southern* District of New York, not the *Eastern*, the jurisdiction CA is located in. CA refused to stipulate to an alternative location (can you blame them? -- no one wants to be dragged into this mess), so Novell then reissued a subpoena early in February from the Eastern District with the place for the deposition listed as a hotel in Hauppauge, NY, directly across the street from CA.

However, CA then told Novell that it had noticed that the deadline for deposing folks, February 1, had come and gone, so it was too late, since the reissued subpoena was dated February 2nd. And so began the tug of war.

CA also told Novell that all of the employees who might have personal knowledge of the matters were no longer with CA, so they thought it'd be a waste of time and resources. The court, CA pointed out, had said each side was allowed one additional deposition after the deadline, and CA asked, are we your one additional, or what?

Novell, by then fully clueful, then sent a crisp letter to CA, pointing out that the second subpoena was identical to the first, other than the location and date, which was a courtesy to CA only, and that CA had no standing to object to the subpoena based on discovery deadlines, not being a party to the case. Further, SCO wasn't objecting. Accordingly, Novell wrote that it "demands that Computer Associates comply with the subpoena or Novell will file a motion to compel."

CA responded, in essence, go ahead. Just send us a copy. By the way, we think your original subpoena was "entirely deficient" and you have no longer "any standing, power or grounds to compel documentary discovery".

Funny stuff, no? Next, Edward Normand, one of SCO's attorneys, sent a letter to Novell's Ken Brakebill saying that "we understand that Computer Associates has objected" and saying that now SCO did object to the reissued subpoena "to the extent it would permit Novell to exceed the number of additional depositions permitted by the Court's minute order of January 25, 2007." That, Novell tells the court later, should be rejected, because SCO has no standing to object to a subpoena on behalf of a nonparty absent a claim of privilege.

So, that is why, we now learn, Novell sought and got an extension of time from the Utah court, after discussions with SCO, I gather, since the order was on stipulation. After obtaining the extension, Novell sent a letter to CA, letting them know the happy news that CA were now properly impaled and would have to submit to the deposition, either voluntarily or Novell would file a motion to compel.

CA sent a letter back, now saying it objected to the subpoena on the grounds that it wasn't noticed in time, something it felt the new scheduling order had not affected. Is this not hilarious? CA added that "CA has not categoricaly refused to provide a deponent." They just wanted to know, they wrote, whether CA was the only deposition noticed between January 29 and February 9, hence the one remaining. However, as Novell later pointed out to the court, CA waited "tellingly" until after the February 9th deadline specified in the order to assert the objection, "thus precluding Novell from easily re-designating CA for deposition by February 9th (assuming Novell was required to do so -- which it was not)." So, Novell by then believed the original objection was just to achieve delay, so it could raise the next objection. However, Novell noted that CA missed a deadline itself. You have 14 days to object to documents subpoenaed, and CA waited 27.

CA's new list of specific objections to the subpoena's documents requests included things like the documents being confidential, CA wanting to make sure the Protective Order would protect them, and the usual "too broad", "unduly burdensome" type of objections. Novell's point of view on that was that it was incredible, given that CA had waived substantive objections, having raised only the issue of the location, in its initial response to the first subpoena. Nevertheless, and you'll like this part, CA offered this objection:

CA objects to the definition of "SCO" in that CA has no way of knowing, for example, who are "its present and former directors, officers, employees, agents, representatives, accountants, investigators, consultants, attorneys, and predecessors and successors in interest", which other "person or entity" may be "acting on its behalf," "subject to its control" or "under common control" with it, or what persons or entities may be "otherwise in the corporate family of The SCO Group, Inc."

Tell me about it. We all have that problem.

CA also objected that it doesn't know anything about the APA. Ask someone who does. Oh, and if you file a motion to compel, send them a copy. That's lawyer talk for "I don't wanna. Go ahead and make me." The substantive objections, however, indicate that by then CA was more concerned that it had better do something substantive. But Novell quotes, in its eventual motion to compel, some cases to the effect that you are supposed to list all your objections at once "so that discovery does not become a 'game'".

Ahem. Heaven forbid.

So, Novell filed a motion to compel at the end of March in the US District Court for the Eastern District of New York (that's Brooklyn, by the way, which may explain some things about the New York style on CA's part -- it's actually headquartered in Islandia, but New York is New York), before the Honorable Eric N. Vitaliano, Novell telling the court that CA was gaming the sytem and obstinately refusing to comply with a valid subpoena. You can find all the documents in this funny saga here [PDF] and the motion to compel here [PDF]. Hey, New Yorkers are New Yorkers, and CA put up a New York fight. But Morrison & Foerster have offices all around the world, including New York. In the end, according to Pacer, there was court ordered to be a telephone conference with all the players, but at that point, the parties let the court know there had been a stipulation, and other than letting the court know how they worked it all out by April 25th, so ended the tug of war. This little dustup played out beginning in January and got resolved in April, but we are only learning of it now. If you were wondering about all the extensions in the schedule, now you know what it was all about.

There is more. If you take a look at the first subpoena, you'll see that Novell also sent subpoenas to CDM Development Corporation, CA, Cymphonix, DTR Business Systems, Inc., Everyone's Internet, Ltd., Furniture Brands International, Inc., Hewlett-Packard Company, Kellogg Company, Leggett & Platt, Inc., Questar Corporation, and Seneca Data Distributors, Inc. HP?

The question is, why would Novell be so interested in doing a deposition of Computer Associates? Because CA is an acknowledged SCOsource licensee, that's why. All the documents Novell asked to be produced are on that topic, specifically asking for all documents from the files of Sam Greenblatt, as well as "all documents relating to any due diligence regarding SCO's and/or Novell's rights in UNIX and UnixWare performed by" CA and any communications with any third party or documents related to SCO's and/or Novell's rights under the APA specifically any patent or copyrights in UNIX, and all information on any payments or other consideration CA made to SCO related to SCOsource. And in the end, the parties worked out some kind of stipulation, and I'm sure after all that, Novell got what it fought for in the main. In time all the other details will come out, I imagine, including what the HP subpoena was about.


1:07-mc-00137-ENV Sco Group, Inc. v. Novell, Inc.
Eric N. Vitaliano, presiding
Date filed: 03/30/2007 Date of last filing: 04/11/2007

History

Doc.
No.
Dates Description
--
Filed: 03/30/2007
Entered: 04/03/2007
Filing Fee Received
Docket Text: FILING FEE: $ 39, receipt number 337433 (Bowens, Priscilla)
1
Filed: 03/30/2007
Entered: 04/03/2007
Motion to Compel
Docket Text: MOTION to Compel Computer Associates International's Compliance with Subpoena by Novell, Inc.. (Attachments: # (1) declara) (Bowens, Priscilla)
2
Filed: 03/30/2007
Entered: 04/03/2007
Disclosure of Interested Parties
Docket Text: DISCLOSURE of Interested Parties by Novell, Inc.. (Bowens, Priscilla)
--
Filed & Entered: 04/03/2007
Order
Docket Text: ORDER The Court is in receipt of defendant Novell, Inc.s motion to compel. Counsel for plaintiff, defendant, and non-party proposed witness Computer Associates International are directed to appear before this Court for a conference on Monday, April 9, 2007 at 3:00 p.m. in Courtroom 6. Counsel for defendant is directed to inform all other counsel of the conference by the close of business on April 4, 2007. (Sent via email from Chambers to Heather M. Sneddon, Esq. at [email redacted], Adam T. Bernstein, Esq. at [email redacted] and Edward J. Normand, Esq. at [email redacted].) Ordered by Judge Eric N. Vitaliano on 4/3/2007. (Wolfe, Karin)
3
Filed & Entered: 04/03/2007
Certificate of Service
Docket Text: CERTIFICATE OF SERVICE by Novell, Inc. re [1] MOTION to Compel Computer Associates International's Compliance with Subpoena, [2] Disclosure of Interested Parties (Whitney, Craig)
4
Filed & Entered: 04/04/2007
Notice(Other)
Docket Text: NOTICE by Novell, Inc. of Court Conference (Whitney, Craig)
5
Filed & Entered: 04/05/2007
Terminated: 04/06/2007
Motion to Adjourn Conference
Docket Text: First MOTION to Adjourn Conference by CA, Inc.. (Attachments: # (1) Supplement Stipulated Adjournment) (Bernstein, Adam)
--
Filed & Entered: 04/06/2007
Order on Motion to Adjourn Conference
Docket Text: ORDER granting [5] Motion to Adjourn Conference. Ordered by JudgeEric N. Vitaliano on 4/6/07. The telephone conference scheduled before this Court for Monday, April 9, 2007 at 3:00 p.m. is hereby adjourned to Wednesday, April 11, 2007 at 2:30 p.m. Defendants counsel is directed to inform all other counsel of the conference and to initiate the call. (Sent via email from Chambers to Craig Whitney, Esq. at cwhitney@mofo.com, Heather M. Sneddon, Esq. at [email redacted], Adam T. Bernstein, Esq. at [email redacted] and Edward J. Normand, Esq. at [email redacted].) (Wolfe, Karin)
--
Filed & Entered: 04/11/2007
Telephone Conference
Docket Text: Minute Entry for proceedings held before Eric N. Vitaliano : Telephone Conference held on 4/11/2007 Counsel appeared for Novell, Inc., Computer Associates, and SCO Group, Inc. via telephone and have jointly advised the Court that this matter will be resolved through stipulation, which may be submitted to the Court to be so ordered. Movant shall apprise the Court of the status of this matter via ECF on April 25, 2007, or before if resolved earlier. (Sent via email from Chambers to Craig Whitney, Esq.at [email redacted], Heather M. Sneddon, Esq. at [email redacted], Adam T. Bernstein, Esq. at [email redacted] and Edward J. Normand, Esq. at [email redacted].) (Wolfe, Karin)

  


Hilarious Novell/Computer Associates Tug-of-War Over Subpoena Ends with a Stip - Oh, and Novell Has Subpoenaed HP | 240 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Off topic here
Authored by: gfim on Wednesday, April 18 2007 @ 01:06 AM EDT
Add off topic comments under here

---
Graham

[ Reply to This | # ]

Corrections here, please
Authored by: ankylosaurus on Wednesday, April 18 2007 @ 01:13 AM EDT
Mitsake --> Mistake works well in the 'title'.

---
The Dinosaur with a Club at the End of its Tail

[ Reply to This | # ]

What's your point!
Authored by: Anonymous on Wednesday, April 18 2007 @ 01:36 AM EDT
It seems that CA would prefer to stay clear of Novell and SCO. Why is that
funny?

[ Reply to This | # ]

HP is really lots of old companies
Authored by: Anonymous on Wednesday, April 18 2007 @ 01:51 AM EDT
Keep in mind that HP is the successor in interest of many classic computer
companies. It could be something related to DEC Ultrix; it could be something
from Tandem.

Any one of them would result in a letter to HP.

[ Reply to This | # ]

SCO is like Ebola
Authored by: kawabago on Wednesday, April 18 2007 @ 02:16 AM EDT
Everyone that got too close is infected.

[ Reply to This | # ]

Kellogg Company?
Authored by: Aladdin Sane on Wednesday, April 18 2007 @ 02:31 AM EDT
Does that mean we get a bowl of Fruit Loops with our entertainment?

---
"Cosmetic: A bug that will only affect the end user." --me, March 2007

[ Reply to This | # ]

CA didn't even want the SCOsource licenses
Authored by: Anonymous on Wednesday, April 18 2007 @ 02:32 AM EDT
As I remember they were a bit angry about being listed as a company who
purchased SCOsource licenses.

I think, they said in effect, that they were shoved on them as a result of an
unrelated settlement.

In any event, I don't suspect CA to be SCO friendly.

[ Reply to This | # ]

CA is in the SCO camp - and acting like it
Authored by: Anonymous on Wednesday, April 18 2007 @ 02:50 AM EDT

Computer Associates is a "SCOSource licensee", i.e. a supporter of SCO's attempted scam from the start.

It wouldn't surprise me if CA's legal team collaborates with SCO's legal team. The tactics look similar, do they not?

[ Reply to This | # ]

Does CA having something more to hide?
Authored by: Anonymous on Wednesday, April 18 2007 @ 04:25 AM EDT
I'm really curious. The depths to which they appear to have sunk fighting this
deposition tooth and nail makes me really wonder if they are hiding something.
If so, any ideas what it might be?

[ Reply to This | # ]

That list of companies...
Authored by: Anonymous on Wednesday, April 18 2007 @ 05:11 AM EDT
CDM Development Corporation, CA, Cymphonix, DTR Business Systems, Inc., Everyone's Internet, Ltd., Furniture Brands International, Inc., Hewlett-Packard Company, Kellogg Company, Leggett & Platt, Inc., Questar Corporation, and Seneca Data Distributors, Inc.
  • A quick breakdown of that list:

    SCOSource licensees: CA, Everyone's Internet ( == EV1 ), Leggett & Platt, Questar

    SCO partners: Cymphonix, DTR, HP (they still sponsor SCOForum each year!), Seneca Data

    As-yet-unknown: CDM, Furniture Brands Intl., Kellogg.

    Everyone's heard of Kellogg. Furniture Brands is (surprise!) furniture, and CDM is a civil engineering & construction firm. Since they aren't IT companies, my guess is that they're previously undisclosed SCOSource licensees. Or SCO approached them privately about SCOSource and they said no.

    [ Reply to This | # ]

    I didn't find it funny at all...
    Authored by: DaveJakeman on Wednesday, April 18 2007 @ 07:21 AM EDT

    ...until I read this:

    CA objects to the definition of "SCO" in that CA has no way of knowing, for example, who are "its present and former directors, officers, employees, agents, representatives, accountants, investigators, consultants, attorneys, and predecessors and successors in interest", which other "person or entity" may be "acting on its behalf," "subject to its control" or "under common control" with it, or what persons or entities may be "otherwise in the corporate family of The SCO Group, Inc."
    I hope IBM takes note. In every IBM reply to a SCO memorandum, every occurrence of the term "SCO" should be objected to thus:
    IBM objects to the definition of "SCO" in that IBM has no way of knowing, in this particular instance, who are "its present and former directors, officers, employees, agents, representatives, accountants, investigators, consultants, attorneys, and predecessors and successors in interest", which other "person or entity" may be "acting on its behalf", "subject to its control" or "under common control" with it, or what persons or entities may be "otherwise in the corporate family of SCO".

    In addition to not knowing what it has supposedly done, IBM cannot possibly defend itself unless it knows who or what it is supposed to be defending itself against.

    Would that not force "SCO" into revealing who or what they really are? Santa Cruz? (look at their logo); Unix System Laboratories? (look at their trademark applications); The Open Group? (look at what they claim to own); a bunch of [redacted]? (look at their actions). "SCO" is the only corporate entity I know of that can assume three identities in the space of one sentence. Or should that be four?

    ---
    Only two things are infinite: the universe and human stupidity and I'm not sure about the former. -- Einstein

    [ Reply to This | # ]

    Uh, hate to be a Devil's Advocate, but....
    Authored by: Anonymous on Wednesday, April 18 2007 @ 08:10 AM EDT
    Why is it that when SCO bollixes up a subpoena (on purpose, it seems, for
    delaying purposes...the Intel subpoena), then it's cause for it to be denied,
    BUT....

    When Novell blows a subpoena (apparently by accident, and they're fighting like
    lions to correct the initial mistake), then it's the subpoena-ee (CA) who's at
    fault?

    Sure, I'm rooting for SCO to fall on it's face, too, but would like our side to
    be so scrupulously *sweet* that it twists the metaphorical knife when SCO loses.

    [ Reply to This | # ]

    HP - Hilarious Novell/Computer Associates Tug-of-War Over Subpoena Ends with a Stip
    Authored by: Anonymous on Wednesday, April 18 2007 @ 08:31 AM EDT
    Shouldn't be a surprise Novell subpeoned HP. Remember Dec had their version of
    Unix for various machines, SCO released that stuff for Unix for the PDP 11. DEC
    was bought by Compaq which was bought by HP. HP now is responsible for two
    license streems for Unix, unless they also bought an permanent irrivocable
    license like IBM did, but that doesn't tell you what the DEC responsibility is.
    Remember SCO said HP was not infringing, but IBM was. What was the grounds for
    that statement? Did HP buy off SCO, and if that is the case, what was that
    contract? This mess will probably end up involving Kinkos before it's over.
    (Can't imagine why Kinko's would be involved, the name just popped into my head.
    I have no knowledge that Kinko's is any way involved with this mess.)

    [ Reply to This | # ]

    Isn't it ironic?
    Authored by: sunnyfla on Wednesday, April 18 2007 @ 09:40 AM EDT
    ...Novell also sent subpoenas to CDM Development Corporation, CA, Cymphonix, DTR Business Systems, Inc., Everyone's Internet, Ltd., Furniture Brands International, Inc., Hewlett-Packard Company, Kellogg Company, Leggett & Platt, Inc., Questar Corporation, and Seneca Data Distributors, Inc.

    A SCOSource license was supposed to keep you out of litigation.

    [ Reply to This | # ]

    Computer Associates International name change
    Authored by: Anonymous on Wednesday, April 18 2007 @ 12:07 PM EDT
    Wikipedia has a piece on CA,Inc AKA Computer Associates International where it notes the name change in Feb 06. So the amusement continues when CA's lawyer only objects to this old name at the very end (in the general objections on page 64 of the PDF).

    [ Reply to This | # ]

    SCOSource Licensees
    Authored by: GLJason on Wednesday, April 18 2007 @ 03:37 PM EDT

    Maybe we (or at least Novell) can determine what SCOSource licenses were about. We have the EV1 license in the IBM case, it appears they were bullied into signing a license instead of getting sued. But what were they actually getting for the license? What code was supposedly in Linux? If it's just SVRX code, then SCO has violated the APA by entering into a new SVRX license without Novell's consent. If it's OpenServer or UnixWare specific code, then SCO would be in the clear, but they have utterly failed to show that yet. If CA just says the same thing as EV1, that they were bullied into a license and they don't know what they got.

    [ Reply to This | # ]

    CA probably has enough troubles without SCO's mess...
    Authored by: Anonymous on Wednesday, April 18 2007 @ 11:47 PM EDT
    " After report, CA and prosecutor mum on Wang
    CA cofounder Charles Wang has been blamed for accounting fraud during his time
    at the company, but neither CA nor the local prosecutor have announced any
    lawsuits
    A spokesman for the U.S. Attorney's Office for the Eastern District of New York
    also had no comment on whether it was pursuing charges against Wang. In April
    2006, that office won a guilty plea from former CA CEO Sanjay Kumar on
    obstruction of justice and securities fraud charges, and Kumar has been
    sentenced to 12 years in prison and pay more than $1 billion in restitution to
    stockholders."
    http://www.infoworld.com/article/07/04/16/HNnowordonwang_1.html


    Computer Associates is a well known computer software company that was
    established in 1976 by Charles Wang and a few others. However, Charles Wang and
    a few other former executives participated in a $2.2 Billion accounting fraud
    against Computer Associates. How did they do this? Wang and the others inflated
    the profit margin of the company to raise the company's stock...

    Other executives that were involved in the scheme were Sanjay Kumar, former CEO;
    Petere Schwartz, former chief financial officer; David Kaplan, former head of
    financial reporting; Stephen Richards, former head of worldwide sales; David
    Rivards, former head of sales organization; Steven Woghin, former general
    counsil; and Ira Zar, former chief financial officer. Sanjay Kumar, the former
    CEO of Computer Associates, is already facing prison time for such accounting
    fraud. (Newsday)
    http://www.associatedcontent.com/article/215116/computer_associates_cofounder_le
    d_22.html

    [ Reply to This | # ]

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